Virginia Department of corrections fires juggalo for being gang member “The Agency considers it to be a dangerous conflict for an employee to be a gang member or sympathetic to a gang and also supervise members of that gang” – JH

Case No. 10804
8 only to the laws of Congress, but also to the policies, practices and decisions of State government. Section 12 of Article I of the Constitution of Virginia provides: That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.
Grievant’s postings on her social media page expressing her enthusiasm for and
enjoyment of the music of the Insane Clown Posse are clearly speech. The question then become whether that speech is protected from interference by the Department of Corrections. In
San Diego v. Roe
543 U.S. 77, the Supreme Court held: A government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment. See,
e. g., Keyishian
v.
Board of Regents of Univ. of State of N. Y.,
385 U. S. 589, 605-606 (1967). On the other hand, a governmental employer may impose certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public. The Court has recognized the right of employees to speak on matters of public concern, typically matters concerning government policies that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment. See
Connick, supra; Pickering
v.
Board of Ed. of Township High School Dist. 205, Will Cty.,
391 U. S. 563 (1968). Outside of this category, the Court has held that when government employees speak or write on their own time on topics unrelated to their employment, the speech can have First Amendment protection, absent some governmental justification “far stronger than mere speculation” in regulating it.
United States
v.
Treasury Employees,
513 U. S. 454, 465, 475 (1995) (
NTEU
). *** This concern prompted the Court in
Connick
to explain a threshold inquiry (implicit in
Pickering
itself) that in order to merit
Pickering
balancing, a public employee’s speech must touch on a matter of “public [543 U.S. 83] concern.” 461 U. S., at 143 (internal quotation marks omitted).
Connick
held that a public employee’s speech is entitled to
Pickering
balancing only when the employee speaks “as a citizen upon matters of

Case No. 10804
9 public concern” rather than “as an employee upon matters only of personal interest.” 461 U. S., at 147. The threshold que
stion in this case is whether Grievant’s postings
were a matter of public concern rather than on matters of personal interest. The facts presented to the Hearing Officer are not sufficient for the Hearing
Officer to conclude that Grievant’s speech was r
egarding a matter of public concern. The evidence presented showed that Grievant
’s
postings on a social media site reflected her personal preference regarding a type of music and enjoyment of identifying with others fans of the Insane Clown Posse. Because the Hearing Officer cannot conclude that Grievant was addressing a matter of public concern, it is not appropriate
to apply the Pickering balancing test. The Agency did not violate Grievant’s freedom of
speech when it took disciplinary action against her for her postings regarding Juggalos and the Insane Clown Posse. Grievant argued that her dismissal was arbitrary or capricious. The Agency presented sufficient facts and policy to show its removal of Grievant was not in disregard of any material facts or without a reasoned basis.
Va. Code § 2.2-3005.1
authorizes Hearing Officers to order appropriate remedies
including “mitigation or reduction of the agency disciplinary action.” Mitigation must be “in accordance with rules established by the Department of
Human Resource Management
….”
8
Under the
Rules for Conducting Grievance Hearings,
“[a] hearing officer must give deference to the agency’s consideration and assessment of any
mitigating and aggravating circumstances. Thus, a hearing officer may mitigate the
agency’s discipline only if, under the record evidence, the agency’s discipline exceeds the limits of reasonableness. If the hearing officer mitigates the agency’s discipline, the hearing officer shall state in the hearing decision the basis for mitigation.” A non
-exclusive list of examples includes whether (1) the employee received adequate notice of the existence of the rule that the employee is accused of violating, (2) the agency has consistently applied disciplinary action among similarly situated employees, and (3) the disciplinary action was free of improper motive. The Hearing Officer believes that the Agency is removing an otherwise valuable
employee. The Hearing Officer, however, is not a “super personnel officer” who can
substitute his human resource decision onto an agency who has met its burden of proof supporting disciplinary action. In light of the standard set forth in the Rules, the Hearing Officer finds no mitigating circumstances exist to reduce the disciplinary action.
DECISION
8
Va. Code § 2.2-3005.

Case No. 10804
10 For the reasons stated herein, the Agenc
y’s issuance to the Grievant of a Group
III Written Notice of disciplinary action with removal is
upheld
.
APPEAL RIGHTS
You may file an administrative review request within
15 calendar
days from the date the decision was issued, if any of the following apply: 1. If you believe the hearing decision is inconsistent with state policy or agency policy, you may request the Director of the Department of Human Resource Management to review the decision. You must state the specific policy and explain why you believe the decision is inconsistent with that policy. Please address your request to: Director Department of Human Resource Management 101 North 14
th
St., 12
th
Floor Richmond, VA 23219 or, send by fax to (804) 371-7401, or e-mail. 2. If you believe that the hearing decision does not comply with the grievance procedure or if you have new evidence that could not have been discovered before the hearing, you may request that EDR review the decision. You must state the specific portion of the grievance procedure with which you believe the decision does not comply. Please address your request to: Office of Employment Dispute Resolution Department of Human Resource Management 101 North 14
th
St., 12
th
Floor Richmond, VA 23219 or, send by e-mail to EDR@dhrm.virginia.gov, or by fax to (804) 786-1606. You may request more than one type of review. Your request must be in writing and must be
received

by the reviewer within 15 calendar days of the date the decision was issued. You must provide a copy of all of your appeals to the other party, EDR,
and the hearing officer. The hearing officer’s
decision becomes final
when the 15-calendar day period has expired, or when requests for administrative review have been decided. You may request a judicial review if you believe the decision is contradictory to law. You must file a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose within
30 days
of the date when the decision becomes final.
9

9
Agencies must request and receive prior approval from EDR before filing a notice of appeal.